Today’s morning newscasts were filled with the stories of the passing of George Carlin – a comedian and satirist who effectively wrote the indecency regulations that most broadcasters abide by – without the FCC ever having had to adopt the regulations that he attributed to them. In the broadcast world, Mr. Carlin was probably best known for his routine about the Seven Words that You Can Never Say on TV. When that routine was aired by a New York radio station, and heard by a parent who claimed that he had a child in his car when the routine came over his radio in the middle of the day, the resulting FCC action against the station resulted in appeals that ended in the Supreme Court which, in its Pacifica case, upheld the right of the FCC to adopt indecency rules for the broadcast media to channel speech that is indecent, though not legally obscene, into hours when children are not likely to be listening. But what this case and the FCC ruling did not hold are perhaps more misunderstood than what the case did hold.
First, the case was about "indecency" not "obscenity." Many of this morning’s newscasts referred to the Pacifica decision as being an Obscenity decision. Obscenity is speech that can be banned no matter what the time and place, as it is speech that is deemed to have no socially redeeming value. Indecency, on the other hand, is a far more limited concept. Indecent speech is speech that is constitutionally protected – it has some social significance such as the social commentary clearly conveyed by the Carlin routine. It cannot be constitutionally banned. But the Supreme Court upheld the FCC’s decision in the Pacifica case that, because of the intrusive nature of the broadcast media, it can be limited to hours where children are not likely to be in the audience. Hence, the FCC has a "safe harbor" that allows indecent programming between the hours of 10 PM and 6 AM, when "obscene" programming is never allowed on the air.
But perhaps the greatest misimpression of the Carlin routine is the widely held belief that there are in fact Seven Dirty Words that you can never say on the air. In fact, that is not and has never been the FCC’s holding. In fact, until recently, there were no words that were specifically banned on the air – all had to be evaluated by context. Even though recent FCC decisions have tried to make the "F-word" and the "S-word" into those words that you can never say on TV (or radio) outside the safe harbor, even those bans are not absolute as the FCC’s approval of the airing of Saving Private Ryan during prime time hours has shown. (and, as we have written before, these new rules have not fared well so far in the Courts and may be headed back to the Supreme Court for further review). The other words in the Carlin routine have never been specifically prohibited in all contexts – some in fact have been deemed not by themselves indecent in subsequent FCC cases. Instead, under the rules that the FCC has tried to enforce, a contextual review of the program must be done to determine if, in context, the words were used to shock or titillate, and whether they were used to describe sexual or excretory functions. That is obviously a difficult issue to decide, and one that has taken up much legal time and argument since the Pacifica decision. (See our memo, here, discussing some of the lines drawn by the FCC).
Yet, despite the fact that the FCC never adopted a list of Seven Words that You Can Never Say On TV, many broadcasters believe that they have, and we probably have Mr. Carlin to thank for that belief. Perhaps there will be Carlin retrospectives on broadcast stations in coming days – but they are unlikely to run during the middle of the day.